Retamozo v. U.S. Bancorp d/b/a U.S. Bank

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Fouzia Retamozo,

Plaintiff,

No. 21 CV 1652

v.

Judge Lindsay C. Jenkins

U.S. Bancorp, doing business as, U.S.

Bank,

Defendant.

MEMORANDUM OPINION AND ORDER

In a suit against her former employer U.S. Bancorp (“U.S. Bank”), Plaintiff

Fouzia Retamozo (“Retamozo”) alleges a failure to accommodate under the Americans

with Disabilities Act (“ADA”) (Count One); retaliation under the ADA (Count Two);

disparate treatment under the ADA (Count Three);1 and interference and retaliation

under the Family Medical Leave Act (“FMLA”) (Count Four). [Dkt. No. 12.]

Before the Court are two motions for summary judgment. [Dkt. Nos. 73, 83.]

Summary judgment is granted on Retamozo’s ADA failure to accommodate claim and

on her FMLA interference claim, Counts One and Four respectively. Summary

judgment is denied as to Retamozo’s ADA retaliation claim, ADA disparate treatment

claim, and FMLA retaliation claim, Counts Two, Three, and Four, respectively. The

Court also denies U.S. Bank’s motion for summary judgment on after-acquired

evidence and grants Retamozo’s cross-motion on that defense.

1 Retamozo voluntarily dismissed her ADA hostile work environment claim in

Count Three. [Dkt. No. 69.]

I. Factual Background2

A. Retamozo’s FMLA Leave and ADA Accommodation

Retamozo is a former employee of U.S. Bank. [Dkt. No. 80 at ¶¶ 3–4.] She

worked as a Branch Manager at the Glenview branch from September 11, 2017 until

her termination on April 11, 2020. [Id. ¶¶ 13, 15, 72.] From her start date until early

2019, Retamozo reported directly to Gregory Cromwell, U.S. Bank Vice President and

District Manager. [Id. ¶¶ 12, 15.] Beginning in February of 2019, Retamozo reported

to Deborah Zegger, another District Manager. [Id. ¶ 15.]

At the start of her employment, Retamozo gave notice to U.S. Bank that she

and her daughter were a victim of domestic violence and qualified for leave under the

Illinois Victims Economic Security and Safety Act (“VESSA”).3 [Dkt. No. 86 at ¶ 1.]

At various times between 2017 to 2019, Retamozo emailed her superiors and HR

personnel requesting leave under VESSA. [Id. ¶¶ 2–6, 11 (requesting “leniency” or

“guidance” in additional to VESSA leave).] In large part, U.S. Bank granted these

requests. [Dkt. No. 74-15.]

Retamozo first became eligible for FMLA leave on September 11, 2018, and she

subsequently requested and received a twelve-week FMLA leave of absence from

2 The following facts are undisputed, unless otherwise noted. In the context of

cross-motions for summary judgment, the Court views the facts in the light most favorable

to party against whom the motion under consideration is made. See Med. Protective Co. of

Fort Wayne, Ind. v. Am. Int’l Specialty Lines Ins. Co., 911 F.3d 438, 445 (7th Cir. 2018).

3 Retamozo does not bring a state law VESSA claim in this case. [Dkt. No. 12.]

As Defendant points out, that claim is currently pending before the Illinois Department of

Labor. [Dkt. No. 87 at 4 n.2.] The Court considers facts related to VESSA only to the extent

they relate to the ADA failure to accommodate claim.

October 1, 2018 to December 26, 2018. [Dkt. No. 80 at ¶¶ 19–20.] On returning from

leave on December 27, 2018, she resumed her position as Branch Manager. [Id. ¶ 21.]

After a workplace incident on April 18, 2019, Retamozo requested and took a

worker’s compensation leave of absence from April 19 through June 3, 2019. [Dkt.

No. 80 at ¶ 22; Dkt. No. 86 at ¶ 14.] Following that leave, Zegger emailed Retamozo

to notify her that she had “exhausted FMLA and Illinois state leave, including

VESSA” and thus was not eligible for “FMLA or similar state leave” at that time.

[Dkt. No. 80 at ¶ 23.] Even so, Zegger stated that Defendant would “work with”

Retamozo and would “approve time off” for Retamozo to attend to her and her

daughter’s needs. [Id.] Zegger further noted that if Retamozo needed any at-work

modifications, she should contact Zegger or another Human Resources employee,

Joan Kulovitz, who was assigned to the Glenview branch. [Id. ¶¶ 23, 26.] That same

day, Retamozo responded and requested an ADA accommodation to attend

“counseling services weekly” for herself and her daughter. [Id. ¶ 24.] Zegger told

Retamozo that Kulovitz would follow up about this request. [Id. ¶ 26.]

On July 18, 2019, Kulovitz emailed a questionnaire to Retamozo that sought

information from Retamozo’s medical provider related to her ADA accommodation

request. [Dkt. No. 80 at ¶ 27.] On July 29, 2019, Retamozo’s medical provider, Dr.

Yael Ron, submitted the completed questionnaire. [Id. ¶ 28.] Dr. Ron noted that

Retamozo could carry out her job requirements with certain accommodations, “such

as business calling & extended deadlines for completing tasks.” [Id. ¶ 29.] Dr. Ron

also noted that Retamozo needed to be absent from work on an intermittent basis to

“attend 1-2 hours of psychotherapy weekly” and that “her daughter’s treatment might

require similar amount to [sic] time devoted to meetings weekly.” [Id.] In response to

the questionnaire’s inquiry as to whether there were “any modifications that would

assist [Retamozo] in performing her job,” Dr. Ron stated that Retamozo should be

allowed to (1) “[t]ake conference calls on her mobile when heading to or out of office,

(2) “attend meeting and appointments without harassing and shaming her,” and (3)

be “paid [and] unpaid time off in case of emergency & immediate threat to her or her

daughter’s safety.” [Id. ¶ 30.]

On August 7, 2019, Kulovitz confirmed by email that the Bank had received

Dr. Ron’s completed questionnaire. [Id. ¶ 31.] Kulovitz informed Retamozo that U.S.

Bank would accommodate her “request for one to two hours per week away from work

to attend to [her] own psychotherapy appointment.” [Id.] As before, Kulovitz informed

Retamozo that although she was not eligible for FMLA or similar state leave, the

Bank would work with her to the extent that it could approve time off for Retamozo

to attend to her and her daughter’s needs. [Id.] That same day, Retamozo replied,

asking if U.S. Bank would honor accommodations “other than just medical

appointments.” [Id. ¶ 32.] On August 9, 2019, Retamozo and Kulovitz spoke by phone

to discuss the requested accommodations. [Id. ¶ 33.]

On August 15, 2019, Retamozo emailed Kulovitz to “follow up on all the

accommodations and request approval for each listed item” in the questionnaire. [Id.

¶ 34.] Retamozo’s email stated that she has “forgetfulness/confusion at times” when

she was “dealing with relapses.” [Id.] Retamozo stated that she wanted Zegger “to be

aware of that,” and that she could “make errors at times when dealing with

operational expectations to be met.” [Id.] As an example, Retamozo said that on

August 5, 2019, she audited the branch’s ATM instead of the vault as instructed, and

as such would need an “adjustment” from Zegger. [Id.]

On August 21, 2019, Kulovitz emailed Retamozo to summarize their telephone

conversation from August 9th and to answer Retamozo’s lingering questions about

her accommodations. [Id. ¶ 35.] Kulovitz reiterated that U.S. Bank would

accommodate for Retamozo’s psychotherapy appointments and noted that as of July

16th—the date of her initial accommodation request—Retamozo was allowed to use

her cell phone for the weekly managers’ call and to forgo small business calls. [Id. ¶¶

35–36, 40–42.] Kulovitz noted that U.S. Bank would accommodate Retamozo’s

requests for leave as needed, even though she had no remaining FMLA leave. [Id. ¶

35.] Finally, in response to Retamozo’s request to make operational errors, Kulovitz

explained that Retamozo would “continue to be held to the performance expectations

of [her] position,” which included “attending applicable meetings, and following

normal reporting, operational, and other policies and procedures.” [Id. ¶ 36.]

On September 5, 2019, Retamozo emailed Kulovitz requesting an in-person

meeting to discuss her requested accommodations, specifically noting that she

wanted to share the “handbook from the State of IL Dept. of Labor” so Kulovitz could

“see why [her] doctor requested detailed information specific to [her] job performance

and needs outside the workplace.” [Id.] Kulovitz and Retamozo subsequently met on

September 17, 2019, and spoke about the accommodations she should receive as a

parent of a qualifying individual under VESSA. [Id. ¶¶ 37–38.] According to

Retamozo, Kulovitz told her that her accommodation was “unnecessary” as the Bank

had already done “enough,” a statement U.S. Bank denies. [Dkt. No. 86 at ¶ 31.] On

September 20, 2019, Kulovitz emailed Retamozo, reiterating that U.S. Bank would

accommodate her psychotherapy appointments and approve her time off requests as

needed, despite not qualifying for FMLA leave at that time. [Dkt. No. 80 at ¶ 39.]

Retamozo requested and took a second twelve-week FMLA leave from October

1, 2019 to December 26, 2019. [Id. ¶ 44.] On returning from that leave, she resumed

her position as Branch Manager of the Glenview branch. [Id. ¶ 45.]

B. The Misconduct Investigation

After her return from the second FMLA leave, three events prompted U.S.

Bank to investigate Retamozo for misconduct in violation of U.S. Bank’s Code of

Ethics. During the first incident on January 21, 2020, Retamozo showed Michael

Barnes, an employee who directly reported to Retamozo, photos of herself and her

fiancé. [Dkt. No. 80 at ¶¶ 46–48.] Retamozo admits that the photos she showed

Barnes depicted her exposed belly and her fiancé’s bare chest. [Dkt. No. 86 at ¶ 25.]

U.S. Bank maintains that the images were nude photos of Retamozo and her fiancé

in sexual poses, including depicting Retamozo’s breasts. [Dkt. No. 80 at ¶¶ 47–48.]

The second incident occurred on February 14, 2020. Retamozo’s fiancé came to

the Glenview branch, took off his clothing from the waist up, and danced in

Retamozo’s office with her office door open. [Id. ¶¶ 47, 49.] The parties agree that

Retamozo did not know about this event beforehand. [Dkt. No. 86 at ¶ 26.] Later that

same day, Retamozo and her fiancé were inside Retamozo’s office with the door closed

for approximately one hour. [Dkt. No. 80 at ¶¶ 47, 50–52.]

For the third incident on February 18, 2020, Retamozo sent Barnes a text

message that read, “[g]oing to get vagina rejuvenated again soon.” [Id. ¶ 53.]

Retamozo admits that she sent the text message to Barnes but did so by mistake.

[Dkt. No. 86 at ¶¶ 29, 34.] She did not report to this incident to Zegger or anyone else

at U.S. Bank. [Dkt. No. 80 at ¶ 53.]

On February 21, 2020, Zegger and Kulovitz received information about each of

these incidents, along with additional information that Retamozo may have sent an

inappropriate photo to another co-another worker via SnapChat. [Id. ¶ 47.] Kulovitz

submitted a summary of these complaints to U.S. Bank’s Centralized Investigations

Team (“CIT”). [Id. ¶ 55.] Emily Brooks-Lipor, a Senior CIT Investigator, was assigned

to investigate. [Id. ¶ 56.] Brooks-Lipor did not know Retamozo, Zegger or Kulovitz

prior to her investigation. [Id. ¶¶ 57–60.] Brooks-Lipor testified that she had

previously investigated other U.S. Bank employees for sexual harassment and

misconduct. [Dkt. No. 86 at ¶¶ 80–94.]

To investigate, Brooks-Lipor reviewed relevant text messages and security

video photographs from January 21 to February 14, 2020. [Dkt. No. 80 at ¶ 68.] She

also interviewed several employees who worked with Retamozo during the relevant

times and took notes of those interviews. [Dkt. No. 80 at ¶ 62; Dkt. No. 74-19.] The

witnesses Brooks-Lipor interviewed generally confirmed the details of the incident

from February 14. [Dkt. No. 80 at ¶¶ 66–67.] Barnes also confirmed that Retamozo

showed him nude photos of herself and her fiancé and sent the text message described

above. [Id. ¶¶ 63–64.]

During several interviews, Brooks-Lipor learned of Retamozo’s leaves of

absence. [Id. ¶ 72.] During his interview, Barnes relayed that Retamozo was gone for

a six-month period and “was out of the bank a lot and not in regular attendance.”

[Dkt. No. 86 at ¶ 65.] During her interview, Zegger similarly noted that Retamozo

“was on leave of absence for six months,” seemed to “come[] and go[] whenever,” only

worked four hours a day on many occasions, and started work at 10:30 or 11:00 a.m.

[Id. ¶ 70; Dkt. No. 74-19 at 50.] Zegger further noted a “pattern” that as soon as

Retamozo was eligible for leave, she would take it. [Dkt. No. 86 at ¶ 71.] Zegger

described previous attempts to hold Retamozo accountable but commented that she

“hides under . . . doctor’s notes,” using them as a “get out of jail free card” and says

she is under “too much stress.” [Id. at ¶ 70.]

Brooks-Lipor learned similar information about Retamozo’s medical condition

during a conversation with Kulovitz on March 26, 2020. [Id. ¶ 77.] Kulovitz said that

Retamozo had “stuff behind the curtain” that she was “protected by,” and that the

“things behind her ‘medical curtain’” were very new, which resulted in “her being out

of the office more.” [Dkt. No. 74-19 at 74.] Kulovitz said “every time [Retamozo] has

to leave we have to take it at face value but does it always seem truthful . . . no.” [Id.;

Dkt. No. 86 at ¶¶ 52, 77.] According to Brooks-Lipor’s notes, Kulovitz said that there

were “other things going on with [Retamozo] regarding performance stuff.” [Dkt. No.

86 at ¶ 52.] When Kulovitz was deposed, she acknowledged that during the early part

of 2020, there were no performance concerns regarding Retamozo, and that she was

not involved in Retamozo’s “performance management.” [Dkt. No. 81-3 at 41 (“Q.:

Was there any indication to you as of February 25, 2020, that there were any

performance concerns? A. Not to my knowledge on performance concerns.”).]

During her deposition, Brooks-Lipor testified that she had no knowledge of

Retamozo’s disability, nor was she familiar with any of Retamozo’s requests for

accommodations. [Dkt. No. 81-4 at 285–86.] Brooks-Lipor also acknowledged that

during her investigation, she became aware of other concerns outside of the sexual

harassment allegations, which Brooks-Lipor characterized as “concerns generally”

regarding Retamozo’s employment and the ADA and FMLA. [Id. at 34–37.] Brooks-

Lipor testified that these details did not factor into conclusions and that her focus

was on the information relevant to her investigation. [Id. at 130, 136.]

Brooks-Lipor closed her investigation on April 6, 2020, and memorialized her

findings and recommendations in a report entitled, “Investigation Resolution Form.”

[Dkt. No. 80 at ¶ 69.] The final report substantiated the complaints regarding the

text message and sexual photos Retamozo sent to Barnes, as well as the events of

February 14. [Id. ¶ 70.] Unlike her interview notes, which contained detailed

summaries of Zegger and Kulovitz’s remarks about Retamozo’s absences, the final

report did not include these comments. [Dkt. No. 74-19 at 78.] The report contained

the following “additional note:” “There appear to be several other concerns regarding

Retamozo’s performance and leadership abilities that may need to be addressed.”

[Dkt. No. 74-19 at 78; Dkt. No. 86 at ¶ 78.]

Brooks-Lipor recommended Retamozo’s termination, stating that Retamozo

had violated U.S. Bank’s Code of Ethics and Business Conduct, and Workplace

Respect Policies. [Dkt. No. 80 at ¶ 70.] Brooks-Lipor testified that she made her

recommendation based on the complaints about Retamozo’s behavior, not her

disability or leaves of absence. [Id. ¶¶ 71–73.] Retamozo disputes this. [Id.] occasion

Brooks-Lipor communicated her investigation’s results first to Tina Vincelli, a

U.S. Bank employee who was not the final decisionmaker. [Id. ¶ 74.] Vincelli

responded that she was “happy to chat but given what has been substantiated,”

particularly the allegations concerning Retamozo sharing partially nude photos of

herself and the incident from February 14th, she did not “think there is any way we

don’t term[inate] here.” [Id. ¶ 75.] On April 10, 2020, Zegger sent an email about the

investigation’s results to Jennifer Barber-Uhri, U.S. Bank Senior Vice President.

[Dkt. No. 80 at ¶ 76; Dkt. No. 74-40 at 2.] Zegger relayed that CIT’s investigation into

Retamozo was complete and that the investigation “substantiated the allegations of

[Retamozo] showing her employee inappropriate pictures of herself and her fiancé in

which were of nudity and sexual content” and of Retamozo’s “fiancé behaving [sic]

inappropriate during work hours at the branch.” [Id.] Zegger noted the

recommendation to terminate Retamozo and requested approval to do so. [Id.]

Barber-Uhri responded that while the investigation’s contents needed to remain

confidential, she approved Retamozo’s termination “based on the conclusions of the

investigation and guidance given by H.R.” [Id.] Retamozo was terminated on April

11, 2020. [Id. ¶ 77.]

II. Legal Standard

The Court should grant summary judgment where there is no genuine issue as

to any material fact and the moving party is entitled to summary judgment as a

matter of law. See Fed. R. Civ. P. 56(a); see also Carroll v. Lynch, 698 F.3d 561, 564

(7th Cir. 2012). A genuine issue of material fact exists if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); see also Skiba v. Ill. Cent. R.R. Co., 884 F.3d

708, 717 (7th Cir. 2018). As the Court confronts cross-motions for summary judgment,

the Court views the facts in the light most favorable to party against whom the motion

under consideration is made. See Med. Protective Co. of Fort Wayne v., Ind. v. Am.

Int’l Specialty Lines Ins. Co., 911 F.3d 438, 445 (7th Cir. 2018). The Court may not

weigh conflicting evidence or make credibility determinations. See Johnson v.

Advocate Health & Hospitals Corp., 892 F.3d 887, 893 (7th Cir. 2018). Further, the

Court must give the nonmovant “the benefit of reasonable inferences from the

evidence, but not speculative inferences in [her] favor.” White v. City of Chicago, 829

F.3d 837, 841 (7th Cir. 2016) (citation omitted). “The controlling question is whether

a reasonable trier of fact could find in favor of the non-moving party on the evidence

submitted in support of and opposition to the motion for summary judgment.” Id.

III. Analysis

A. Count One: Failure to Accommodate under the ADA

U.S. Bank moves for summary judgment on Retamozo’s ADA failure to

accommodate claim. [Dkt. No. 75 at 7–9; Dkt. No. 87 at 2–9.] The ADA prohibits

employers from “discriminat[ing] against a qualified individual on the basis of

disability.” 42 U.S.C. § 12112(a). To comply with this provision, employers must

“mak[e] reasonable accommodations to the known physical or mental limitations of

an otherwise qualified individual with a disability who is an applicant or employee”

unless doing so “would impose an undue hardship on the operation of [employer's]

business.” Id. § 12112(b)(5)(A); see also Brown v. Milwaukee Bd. of Sch. Dir., 855 F.3d

818, 820 (7th Cir. 2017).

A prima facie failure-to-accommodate claim consists of three elements. The

plaintiff must prove (1) that she “is a qualified individual with a disability;” (2) that

the defendant “was aware of her disability,” and (3) that the defendant “failed to

reasonably accommodate the disability.” Kotwica v. Rose Packing Co., 637 F.3d 744,

747–48 (7th Cir. 2011) (quoting EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 797

(7th Cir. 2005)). The parties do not dispute that Retamozo was disabled or that U.S.

Bank was aware of her disability. [Dkt. Nos. 75, 83, 87, 90.] The Court’s analysis

focuses on whether U.S. Bank failed to reasonably accommodate her.

Identifying reasonable accommodations for a disabled employee requires the

employer and employee “to engage in a flexible, interactive process.” Brown, 855 F.3d

at 824. An employer satisfies its duty to reasonably accommodate a disabled employee

when the employer does what is necessary to allow the employee to work in

reasonable comfort. Hoppe v. Lewis Univ., 692 F. 3d 833, 840 (7th Cir. 2012). An

employer need only provide a qualified individual with a “reasonable accommodation,

not the accommodation [the employee] would prefer.” Rehling v. City of Chi., 207 F.3d

1009, 1014 (7th Cir. 2000).

U.S. Bank argues that it is entitled to summary judgment because it granted

the necessary accommodations Retamozo requested. [Dkt. No. 75 at 7.] The Court

agrees. Between July and August of 2019, Retamozo requested four accommodations:

(1) that she be allowed to attend her psychotherapy appointments for one to hours

per week,4 (2) that she be allowed to take the manager’s morning calls from her cell

phone, (3) that she be excused from small business calls, and (4) that she be allowed

to make operational errors. [Dkt. No. 80 at ¶¶ 24–36.] U.S. Bank granted the first

three requests, satisfying its duty to provide a reasonable accommodation.5 Hoppe,

692 F. 3d at 840. [Id. ¶¶ 31, 33, 35.]

The leaves the fourth request that Retamozo be allowed to make operational

errors. Under the ADA, a “qualified individual” is “an individual who, with or without

reasonable accommodation, can perform the essential functions of the employment

position that such individual holds or desires.” 42 U.S.C. § 12111(8). An “essential

4 Retamozo denies that she was allowed to attend all her psychotherapy

appointments but marshals no relevant facts to that effect. [Dkt. No. 80 at ¶ 25.] The evidence

to which she cites refers to a September 20, 2019 email, where she was granted leave to

attend a doctor’s appointment, and other written communications requesting

accommodations between September 2017 to May 2019. [Id.] As discussed later in this

opinion, these earlier requests constitute an improper attempt to amend the Complaint.

5 Retamozo concedes that portions of Dr. Ron’s questionnaire request

accommodations for Retamozo’s daughter’s clinical appointments. [Dkt. No. 75 at 8 n.3; Dkt.

No. 80 at ¶¶ 37–38.] Those requests do not apply to claims under the ADA. The ADA does

not require an employer to modify its leave policy for an employee who needs to take time off

for a child. See Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th Cir. 2017) (“A

‘reasonable accommodation’ is one that allows the disabled employee to ‘perform the essential

functions of the employment position.’”).

function” is a task so important to a disabled employee’s position that the employee’s

inability to perform it with the aid of reasonable accommodation disqualifies that

employee from holding that position. See 29 C.F.R. § 1630.2(n)(1) (“The term essential

functions means the fundamental job duties of the employment position the

individual with a disability holds or desires.”). Put simply, although the ADA requires

that employers adapt the workplace to the disabled employees’ needs, all employees—

disabled or otherwise—may be required to perform certain tasks and a disabled

employee may not demand that the employer dispense with that requirement as an

accommodation. See Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 481 (7th

Cir. 2017) (quoting Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003))

(noting that an accommodation is per se unreasonable when the accommodation itself

creates “an inability to do the job’s essential tasks”).

Retamozo concedes that an “essential” job duty as a branch manager was to

“ensure[] documentation and/or reporting of all applicable transactions is within

accepted quality standards of completeness and accuracy.” [Dkt. No. 80 at ¶ 16.] This

means that her request to be allowed to make operational errors would necessarily

require that she not meet “accepted quality standards of completeness and accuracy”

or, put more simply, not complete an essential task. [Id.] U.S. Bank was not required

to grant this accommodation because doing so would render her unable to perform an

essential task. Severson, 872 at 481.

Retamozo does not seriously argue that U.S. Bank’s denial of this request

constitutes a failure to accommodate. Rather, she argues for the first time that U.S.

Bank violated the ADA by failing to accommodate requests she made before July of

2019. [Dkt. No. 83 at 14–16.] Her brief cites to a laundry list of requests from 2018

through early 2019 that Retamozo characterizes as “multiple requests,

representations and statements [that] put Defendant on notice that she was

requesting an accommodation based upon her medical condition.” [Dkt. No. 83 at 15

(citing Dkt. No. 80 at ¶¶ 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 15 and 119).]

But these new assertions are an improper attempt to amend the FAC at the

summary judgment stage.6 A plaintiff may not change her factual theory during

summary judgment briefing; any attempt to alter the factual basis of a claim at

summary judgment may amount to a de facto attempt to amend the complaint.

Chessie Logistics Co. v. Krinos Holdings, Inc., 867 F.3d 852, 859 (7th Cir. 2017). When

a new argument is made at the summary judgment stage, “the correct first step is to

consider whether it changes the complaint’s factual theory, or just the legal theories

plaintiff has pursued so far.” Id. (citing Whitaker v. Milwaukee Cnty., Wis., 772 F.3d

802, 808–09 (7th Cir. 2014)). This is distinct from a change in a legal theory asserted

in a complaint, which can be changed absent undue cost, difficulty, or unreasonable

delay. See Vidimos, Inc. v. Laser Lab Ltd., 99 F.3d 217, 222 (7th Cir. 1996) (“[T]here

is no burden on the plaintiff to justify altering [her] original [legal] theory.”); see also

Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 909 (7th Cir. 2012) (en banc)

6 U.S. Bank additionally argues that Retamozo’s new claims are untimely and

unexhausted. [Dkt. No. 87 at 4–6.] Because the Court finds that Retamozo’s failure to

accommodate claim fails for other independent reasons, the Court does not address these

arguments.

(holding that plaintiffs are not required to plead legal theories after Twombly and

Iqbal).

Here, the FAC alleges that Retamozo made her first request for an ADA

accommodation on June 3, 2019, when she returned from a worker’s compensation

leave. [Dkt. No. 12 at ¶ 22; Dkt. No. 80 at ¶ 22; Dkt. No. 86 at ¶ 14.] The new

allegations, made for the first time at summary judgment, cannot be said to be “an

alternative legal characterization” of existing facts. They are entirely new facts not

made at the pleadings stage. Chessie, 867 F.3d at 861. The Court rejects this de facto

attempt to amend. Id.; Whitaker, 772 F.3d at 808.

Even if Retamozo’s new allegations had been included in her pleadings, they

cannot survive for other reasons. Many of the accommodation requests she cites to

were made pursuant to VESSA or the FMLA, and not the ADA.7 [Dkt. No. 80 at ¶¶

2, 3, 5, 6, 7, 10, 11.] For example, Retamozo cites to two emails from September 26,

2018 and November 8, 2018, but those emails concerned FMLA leave she requested

and received from October 1, 2018 to December 26, 2018. [Id. at ¶¶ 19-20; Dkt. No.

82-1 at 6–7.] Still other requests, such as a January 8, 2018 email to HR, requested

“a little leniency in regards to my accommodations while healing.” [Dkt. No. 80 at ¶

2.] These requests are vague and lack sufficient information from which to determine

the nature of the requested accommodation. See Brown, 855 F.3d at 821 (quoting

7 Retamozo tacitly acknowledges that she repeatedly blurs the lines between her

ADA, VESSA, and FMLA claims. [Dkt. No. 83 at 15.] And though a VESSA request for an

accommodation on Retamozo’s own behalf might amount to an ADA violation, a request for

accommodation for her daughter would not. See Brown v. Milwaukee Bd. of Sch. Dir., 855

F.3d 818, 820–21 (7th Cir. 2017) (noting that employers must make reasonable

accommodations for disabled employees and applicants).

Reeves ex rel. Reeves v. Jewel Food Stores, Inc., 759 F.3d 698, 702 (7th Cir. 2014))

(holding that if the employee “does not provide sufficient information to the employer

to determine the necessary accommodations, the employer cannot be held liable for

failing to accommodate the disabled employee”).

Still other citations are unsupported by the record. [Dkt. No. 80 at ¶¶ 9, 12.]

Aside from the lack of specificity, Retamozo’s vague references to instances when she

claims to have missed doctor’s appointments or was forced to use vacation or sick

leave are simply belied by the record. At her deposition, Retamozo repeatedly testified

that she was allowed to take time for doctor’s appointments before July of 2019. [Dkt.

No. 80 at ¶¶ 41–42.]

At bottom, even if the new allegations from 2018 and early 2019 could be

considered, Retamozo has failed to marshal supporting evidence in support of her

ADA failure to accommodate claim. See Michael v. St. Joseph Cnty., 259 F.3d 842,

845 (7th Cir. 2001) (noting that “[b]ecause the purpose of summary judgment is to

isolate and dispose of factually unsupported claims,” a plaintiff must respond with

“specific facts showing that there is a genuine issue for trial”); see also United States

v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“[P]erfunctory and undeveloped

arguments, and arguments that are unsupported by pertinent authority, are

waived”). The Court grants summary judgment in favor of U.S. Bank’s motion as to

Count One.

B. Counts Two and Four: ADA and FMLA Retaliation

U.S. Bank also moves for summary judgment on Retamozo’s claims of ADA and

FMLA retaliation, Counts Two and Four. [Dkt. No. 75 at 9.] Because FMLA and ADA

claims are analyzed under the same legal standard and the claims presented arise

from the same set of facts, the Court considers these claims together. See Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004) (noting that the Court

“evaluate[s] a claim of FMLA retaliation the same way that [it] would evaluate a

claim of retaliation under other employment statutes, such as the ADA”); Freelain v.

Vill. of Oak Park, 888 F.3d 895, 901–02 (7th Cir. 2018) (considering ADA and FMLA

retaliation claims together).

An employer may not retaliate against an employee who asserts her rights

under the ADA or the FMLA. See 42 U.S.C. § 12203(a) (ADA); 29 U.S.C. § 2615(a)(2)

(FMLA). To prove ADA or FMLA retaliation, Retamozo must show that (1) she

engaged in a statutorily protected activity, (2) she suffered a materially adverse

action, and (3) that protected activity caused the adverse action. Freelain, 888 F.3d

at 901. In deciding whether there is a genuine issue of material fact that precludes

summary judgment, the Court must “consider the evidence as a whole and ask

whether a reasonable jury could draw an inference of retaliation.” Parker v. Brooks

Life Sci., Inc., 39 F.4th 931, 936–37 (7th Cir. 2022) (quoting King v. Ford Motor Co.,

872 F.3d 833, 842 (7th Cir. 2017)). Circumstantial evidence of causation includes: “(1)

suspicious timing, (2) ambiguous statements or behavior towards other employees in

the protected group, (3) evidence, statistical or otherwise, that similarly situated

employees outside of the protected group systematically received better treatment,

and (4) evidence that the employer offered a pretextual reason for an adverse

employment action.” Id. at 937 (quoting Rowlands v. United Parcel Serv.–Fort Wayne,

901 F.3d 792, 801 (7th Cir. 2018)). The parties agree Retamozo engaged in statutorily

protected activity by requesting FMLA leave and ADA accommodations, and that she

later suffered a materially adverse action in the form of her termination. [Dkt. No. 75

at 7, 9–12; Dkt. No. 83 at 17.]

That leaves the question of causation. Retamozo advances a cat’s paw theory

of liability to overcome summary judgment. [Dkt. No. 83 at 21–23.] Cat’s paw liability

applies when a biased supervisor “who lacks decisionmaking power uses the formal

decision maker as a dupe in a deliberate scheme to trigger a discriminatory

employment action.” Johnson v. Koppers, Inc., 726 F.3d 910, 914 (7th Cir. 2013)

(internal quotation marks omitted) (quoting Smith v. Bray, 681 F.3d 888, 897 (7th

Cir. 2012)). To show discrimination under this theory of liability, Retamozo must

present evidence that the biased non-supervisor—here, Zegger and Kulovitz—

“actually harbored discriminatory animus against her and that the employee’s

scheme proximately caused her termination.” Brooks v. Avancez, 39 F.4th 424, 439

(7th Cir. 2022). Proximate cause under a cat’s paw liability theory exists only if the

investigation took a complaint “into account without determining that the adverse

action was, apart from the supervisor’s recommendation, entirely justified” or if the

investigation “relies on facts provided by the biased supervisor.” Staub v. Proctor

Hospital, Inc., 562 U.S. 411, 421 (2011). The cat’s paw theory of liability does not

apply where the decisionmaker does not rely on the conclusions of an allegedly biased

employee, but instead decides bases her decision on facts presented by an unbiased

party. Woods v. City of Berwyn, 803 F.3d 865, 870–71 (7th Cir. 2015).

Viewing the record in the light most favorable to Retamozo, a reasonable

factfinder could conclude that Zegger and Kulovitz were motivated at least in part by

retaliatory animus arising from Retamozo’s disability and leaves of absence, and that

this proximately caused the termination. First, Retamozo has presented sufficient

evidence of retaliatory animus by Zegger and Kulovitz as “biased” employees. Brooks,

39 F.4th at 439. At least according to Brook-Lipor’s notes, Zegger expressed that

Retamozo was often absent from the branch, seemingly to attend doctor’s

appointments, and would take “leave” as soon as she was eligible for it. [Dkt. No. 86

at ¶ 70.] Zegger stated that Retamozo would “hide” from accountability by using her

doctor’s notes—her “get out of jail free card”—to escape work-related consequences

for her leave. [Id.] Similar animus was documented in notes from the conversation

with Kulovitz, who said that Retamozo “comes with some stuff behind the curtain,”

and “things behind her ‘medical curtain.’” [Dkt. No. 82-5 at 57.] She further expressed

skepticism about the veracity of Retamozo’s requests for leave or accommodation,

noting that they did not all “seem truthful.” [Dkt. No. 86 at ¶ 77.] If these statements

are believed, both expressed frustration that Retamozo was taking extended leave or

leaving the office for medical appointment and were skeptical that Retamozo was

being truthful about these requests. [Dkt. No. 86 at ¶¶ 70, 72, 77.] From this evidence,

a reasonable jury could conclude that both harbored retaliatory animus for requesting

accommodations under the ADA or leave under the FMLA.

But this alone is not enough, since “biased comments do not establish

discriminatory motive unless they were by the decision maker and can be connected

to the decision.” See Perez v. Thorntons, Inc., 731 F.3d 699, 709 (7th Cir. 2013)

Retamozo argues that she has also presented sufficient evidence to create a genuine

issue of fact that Zegger and Kulovitz proximately caused the termination by way of

influencing Brooks-Lipor’s recommendation, which formed the basis of Barber-Uhri’s

decision to approve the termination.

U.S. Bank points to Brooks-Lipor’s lack of awareness of Retamozo’s disability

or requests for accommodation and leave as proof that she only considered the sexual

harassment allegations in formulating her decision to recommend termination. [Dkt.

No. 75 at 11.] True, but granting summary judgment on this basis fails to view the

record in the light most favorable to Retamozo, as the Court is required to do. See

Majors v. General Elec., 714 F.3d 527, 532 (7th Cir. 2013). U.S. Bank concedes that,

through her interviews, Brooks-Lipor learned of information about Retamozo

absences from the branch for doctor’s appointments or other non-work-related

reasons during at least three interviews, and she documented that information in her

interview notes. [Dkt. No. 86 at ¶ 72.] Brooks-Lipor’s final report did not directly

reference the remarks from Barnes, Zegger and Kulovitz, but a reasonable jury might

conclude that the information at least influenced her termination recommendation

considering that the final report “referenced” a “performance concern.” [Dkt. No. 83

at 20; Dkt. No. 74-19 at 78 (“[T]here appear to be several other concerns regarding

Retamozo’s performance and leadership abilities that may need to be addressed.”).]

There is more. The final decision maker was Barber-Uhri, who received an

email from Zegger in April 2020 summarizing the investigation’s results. [Dkt No.

74-40 at 2.] Zegger noted the recommendation to terminate Retamozo’s employment,

and she “request[ed] approval with moving forward with this course of action.” [Id.]

Barber-Uhri approved Retamozo’s termination, stating that she was doing so “based

on the conclusions of the investigation and guidance given by H.R.” [Id.]

There is no evidence in the record about what Barber-Uhri meant by “guidance

given by HR,” likely because she was not deposed.8 This statement, along with

Barber-Uhri’s note, is certainly open to interpretation. A reasonable jury might

conclude it was a reference to HR employee Kulovitz, who expressed frustration about

Retamozo’s absences and motives behind those absences to Brooks-Lipor, but who

later acknowledged she was unaware of any performance concerns about Retamozo.

[Dkt. No. 81-3 at 41.] From this, a jury might conclude that both Brooks-Lipor and

Barber-Uhri considered Retamozo’s disability and leaves of absence—and therefore a

biased input—in rendering the decision to terminate. Staub, 562 U.S. at 421;

Johnson, 726 F.3d at 914. Conversely, a jury could reasonably deem the remarks

inconsequential: that Brooks-Lipor excised the problematic comments when reaching

her conclusions, and that Barber-Uhri was not influenced by others’ views. But on

this record, the Court cannot conclude as a matter of law that no reasonable jury

8 The Court rejects Retamozo’s invitation to apply an adverse inference against

U.S. Bank as it relates to any facts surrounding Barber-Uhri’s approval of Retamozo’s

termination for failing to disclose her as a witness during discovery. [Dkt. No. 80 at ¶ 74;

Dkt. No. 83 at 22.] Retamozo issued document requests concerning Barber-Uhri on April 27,

2022. [Dkt. No. 54-1 at 7–8.] Fact discovery closed a month later. [Dkt. No. 45.] Yet, Retamozo

failed to notice Barber-Uhri’s deposition. The Court previously signaled that it was amenable

to extending the close of fact discovery, but Retamozo did not seek an extension.

could find evidence of retaliatory animus.

Retamozo points to at least one other piece of circumstantial evidence of

causation—that similarly situated employees outside of the protected group

investigated by Brooks-Lipor for misconduct received better treatment. [Dkt. No. 83

at 10—13.] Retamozo’s analysis asks the Court to consider “fourteen other

investigations” where Brooks-Lipor made findings with less serious outcomes, even

though some of those employees had appreciably different job duties, standards, and

supervisors than Retamozo.

The Court declines to extend its analysis quite that far, and instead considers

instances where other branch managers or assistant branch managers arguably

engaged in behavior of “comparable seriousness” as Retamozo’s conduct but were

treated less harshly. See Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054, 1061

(7th Cir. 2008) (noting that a proper comparator need not be the plaintiff’s

“doppelganger,” merely “similar enough to eliminate confounding variables” (internal

quotation marks omitted)); Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012)

(quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008)) (holding that

courts engaging in a comparator analysis must consider whether the two individuals

“engaged in similar conduct without such differentiating or mitigating circumstances

as would distinguish their conduct or the employer’s treatment of them”).

When an assistant branch manager named Heather Bedford sent an

inappropriate sexual text message to a coworker, Brooks-Lipor recommended a

verbal warning. [Dkt. No. 86 at ¶ 82.] When two other branch managers, Mark Jump

and Monte Davis, made lewd or sexual comments, Brooks-Lipor recommended

written warnings or additional training. [Id. ¶¶ 87, 93.] When branch manager

Brittany Brunker was investigated for exposing herself in a bank vault, Brooks-Lipor

found the claim to be unsubstantiated because she deemed it accidental. [Id. ¶ 80.]

Conversely, Retamozo received harsher discipline in the form of a termination, and

the difference is at least noteworthy enough for a jury to consider as circumstantial

evidence of causation.

For these reasons, the Court denies summary judgment on Counts Two and

Four for retaliation under the ADA and the FMLA respectively.

C. Count Three: Disparate Treatment under the ADA

U.S. Bank moves for summary judgment on Retamozo’s claims of disparate

treatment under the ADA, Count Three. [Dkt. No. 75 at 9.] The ADA, as amended,

provides that “[n]o covered entity shall discriminate against a qualified individual on

the basis of disability in regard to . . . discharge of employees . . . .” 42 U.S.C.

§ 12112(a). To make out an ADA disparate treatment claim, Retamozo must show

that: (1) she is disabled, (2) she is otherwise qualified to perform the essential

functions of the job with or without reasonable accommodation, and (3) the adverse

job action was caused by her disability. Roberts v. City of Chi., 817 F.3d 561, 565 (7th

Cir. 2016). The Court’s ultimate inquiry in considering these steps is determining

whether a reasonable factfinder could conclude that Retamozo’s disability caused her

termination. Ortiz v. Werner Enter., Inc., 834 F.3d 760, 765 (7th Cir. 2016); see also

Monroe v. Indiana Dep’t of Transportation, 871 F.3d 495, 504–05 (7th Cir. 2017)

(applying Ortiz to ADA disparate treatment claim). Cat’s paw liability is available in

the discrimination context. See Cook v. IPC Int’l Corp., 673 F.3d 625, 628 (7th Cir.

2012).

Much like Retamozo’s retaliation claims, the parties do not dispute that

Retamozo was disabled and otherwise qualified to perform the essential functions of

her job with or without reasonable accommodation and focus on the causation

element. [Dkt. No. 75 at 13.] For the reasons already discussed, a reasonable jury

could find that Retamozo was terminated because of her disability. There is some

evidence that Zegger and Kulovitz made statements that evince discriminatory

animus about Retamozo’s doctor’s appointments: “things behind her ‘medical

curtain’” that resulted in absences, and repeated requests for leave. At least according

to Brooks-Lipor’s notes, both women communicated these views during the

investigation. Brooks-Lipor’s report references “performance” concerns; Barber-

Uhri’s email references unspecified “guidance from HR.”

At bottom, a jury might find that Retamozo’s misconduct in early 2020 was the

cause of her termination. But it might credit Retamozo’s evidence that her disability

caused her termination. Because a genuine issue of material fact remains, the ADA

disparate treatment claim survives summary judgment.

D. Count Four: Unlawful Interference under the FMLA

U.S. Bank moves for summary judgment on Retamozo’s FMLA interference

claim. [Dkt. No. 75 at 13–15; Dkt. No. 87 at 2.] The FMLA allows eligible employees

to take up to twelve weeks of leave during any twelve-month period if the employee

is unable to perform the functions of her position on account of a serious health

condition. 29 U.S.C. § 2612(a)(1); see also Cracco v. Vitran Exp., Inc., 559 F.3d 625,

635 (7th Cir. 2009). It is “unlawful for any employer to interfere with, restrain, or

deny the exercise of or the attempt to exercise, any right provided,” including the

provision of leave. 29 U.S.C. § 2615(a)(1). An employee claiming FMLA interference

must show that: (1) she was eligible for FMLA protections; (2) her employer was

covered by the FMLA; (3) she was entitled to take leave under the FMLA; (4) she

provided sufficient notice of intent to take leave; and (5) her employer “interfered

with, restrained, or denied FMLA benefits to which [s]he was entitled.” Ziccarelli v.

Dart, 35 F.4th 1079, 1089 (7th Cir. 2022).

Retamozo’s opposition brief does not address why her FMLA interference claim

should not be dismissed. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d

1068, 1078 (7th Cir. 2016) (noting that failure to respond to arguments in summary

judgment motion results in waiver). Even absent this waiver, Retamozo was granted

all the FMLA leave for which she was eligible as of her eligibility date on September

11, 2018. See 29 U.S.C. § 2611(2)(A)(i) (defining an “eligible employee” as an employee

who “has been employed for at least 12 months by the employer with respect to whom

leave is requested”). Before then, Retamozo was not eligible for the benefit. See

Basden v. Pro. Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013) (quoting Walker v.

Elmore County Board of Educ., 379 F.3d 1249, 1253 (11th Cir. 2004)) (“There can be

no doubt that the request—made by an ineligible employee for leave that would begin

when she would still have been ineligible—is not protected by the FMLA.”). After that

date, Retamozo took two leaves of absence, first from October 1 to December 26, 2018

and then from October 1 through December 26, 2019. [Dkt. No. 80 at ¶¶ 20, 44.] No

reasonable jury could conclude that U.S. Bank interfered with an FMLA benefit.

Nor did U.S. Bank interfere with Retamozo’s FMLA rights by terminating her.

[Dkt. No. 12 at ¶ 101.] Retamozo was terminated three and a half months after she

returned from her second FMLA leave that ended on December 27, 2019. [Dkt. No.

80 at ¶¶ 45, 77.] No FMLA leave request was pending as of her termination in April

2020. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 827–28 (7th Cir. 2012)

(affirming grant of summary judgment on FMLA interference claim when employee

was terminated two months after the employee requested and was granted one-day

FMLA leave). Summary judgment is granted on Retamozo’s FMLA interference

claim, Count Four.

E. Cross Motions on the Affirmative Defense of After-Acquired

Evidence

U.S. Bank moves for summary judgment on its affirmative defense of after-

acquired evidence. [Dkt. No. 75 at 15.] In her cross-motion, Retamozo moves for

summary judgment on this defense. [Dkt. No. 83 at 24–25.] In an employment

discrimination or retaliation case, the defendant-employer may assert an affirmative

defense of after-acquired evidence to limit backpay damages. See generally McKennon

v. Nashville Banner Pub. Co., 513 U.S. 352, 361–62 (1995); see also O’Neal v. City of

New Albany, 293 F.3d 998, 1004 (7th Cir. 2002) (holding that the “after-acquired

evidence that an employee misrepresented her qualifications in a job application or

resume does not bar the employee’s discrimination claim”). Under this defense, the

Court may use the date on which the employer discovered evidence of the employee’s

misconduct as the date at which backpay damages stop accumulating. Sheehan v.

Donlen Corp., 173 F.3d 1039, 1047 (7th Cir. 1999).

To get the benefit of this damages-limitation defense, an employer must

“establish that the wrongdoing was of such severity that the employee in fact would

have been terminated on those grounds alone if the employer had known of it at the

time of the discharge.” McKennon, 513 U.S. at 362–63; see Sheehan, 173 F.3d at 1048

(quoting O’Day v. McDonnell Douglas Helicopter Corp., 79 F.3d 756, 759 (9th Cir.

1996)) (observing that the after-acquired evidence inquiry “focuses on the employer’s

actual employment practices, not just the standards established in its employee

manuals, and reflects a recognition that employers often say they will discharge

employees for certain misconduct while in practice they do not”). This limitation

applies “even if [the information regarding misconduct] is acquired during the course

of discovery in a suit against the employer and even if the information might have

gone undiscovered absent the suit.” McKennon, 513 U.S. at 362. Although both

parties move for summary judgment on the affirmative defense of after-acquired

evidence, the employer bears the burden to prove by a preponderance of the evidence

that the after-acquired evidence would have led to the employee’s termination.

Sheehan, 173 F.3d at 1047–48; see also James River Ins. Co. v. Kemper Cas. Ins. Co.,

585 F.3d 382, 385 (7th Cir. 2009) (“It is sensible to place the burden of proof of an

affirmative defense on the defendant, rather than making the plaintiff prove a

negative.”).

U.S. Bank contends that Retamozo lied on her job application, and had it

known this, it would have terminated her. [Dkt. No. 75 at 15.] In support, it relies on

Cromwell’s declaration, the person who interviewed, hired, and then supervised

Retamozo until early 2019.9 [Dkt. No. 75 at 2–3, 15.] In her employment application,

Retamozo was asked: “If you have ever been discharged, suspended terminated,

resigned without notice, or allowed to resign prior to termination in conjunction with

previous employment, please describe the circumstances below (if not applicable

enter ‘n/a’).” [Dkt. No. 74-48 at ¶ 3.] Retamozo responded that her then “current job”

was with 21st Century Financial Services, LLC (“21st Century”) and she did not

provide a reason for leaving (or “N/A”). [Id.] Cromwell avers that had he known this

information, he would not have hired her or alternatively, would have sought her

termination. [Dkt. No. 74-48 at ¶¶ 6, 8.]

During discovery, U.S. Bank learned information about the circumstances

surrounding Retamozo’s prior employment with 21st Century, where Retamozo

worked as a Regional Sales Manager. [Dkt. No. 80 at ¶ 5.] In August of 2017, an audit

of Retamozo’s expense reimbursement requests revealed that she had submitted

9 The Court rejects Retamozo’s argument that U.S. Bank violated Fed. R. Civ.

P. 37(c) in its initial and supplemental disclosures. [Dkt. No. 83 at 25.] Retamozo identified

Cromwell in her Rule 26 disclosures, and U.S. Bank subsequently provided Cromwell’s

contact information. [Dkt. No. 89 at ¶¶ 1–2.] The Court likewise rejects the argument that

Cromwell’s declaration contradicts his deposition testimony. [Dkt. No. 83 at 24.] In his

deposition, Cromwell testified that he “may have seen” Retamozo’s application, but he does

not “remember” as it been a “long time” since he had seen it last. [Dkt. No. 86 at ¶ 98.] This

evinces a lack of memory, not a contradiction. See Unterreiner v. Volkswagen of Am., Inc., 8

F.3d 1206, 1210 (7th Cir. 1993) (holding that “[a] fact-finder could not reasonably infer from

[plaintiff’s] statements, taken as a whole, that” a certain fact was disputed because the

alleged dispute was founded on “what [plaintiff] admits to be a faulty recollection” which is

“not sufficiently probative”).

fraudulent expense reimbursement requests. [Id. ¶ 6.] 21st Century informed

Retamozo that it was aware her mileage records were not “accurate,” and Retamozo

submitted a letter of resignation that same day. [Id. ¶ 7.] Retamozo admitted to these

acts and omissions at her deposition. [Dkt. No. 80 at ¶¶ 8, 12–13.]

The sole piece of evidence on which U.S. Bank relies—Cromwell’s

declaration—is too thin to support summary judgment in Defendant’s favor. Courts

in this district have declined to grant summary judgment on the basis of declaratory

statements alone. In Lalowski v. Corinthian Schools, Inc., the defendant-employer

asserted an affirmative defense of after-acquired evidence based solely on a

declaration that, had it discovered plaintiff’s failure to include all employers on his

resume (including an employer that terminated the plaintiff), it would have fired the

plaintiff. 10 C 1928, 2013 WL 1788353 at *8–9 (N.D. Ill. Apr. 26, 2013). The Court

declined to find this submission satisfied the preponderance of the evidence, noting

that the employer needed to establish that their “decision to terminate not only would

have been justified, but also would have occurred.” Id. at *9. When an employer

merely asserts that an employee would have been fired after the relevant discovery

but fails to “present any evidence that in the past they have fired other employees for

such conduct,” an after-acquired evidence defense is appropriately rejected. Id.

Aside from the declaration, U.S. Bank does not provide any documents such as

an employee handbook, spelling out applicable policies that might be helpful (though

are not dispositive) of the issue. Nor has U.S. Bank provided historical evidence of

firing employees who made similar misrepresentations on employment applications.

See Sheehan, 173 F.3d at 1047—48 (affirming summary judgment in favor of employee

where “no one in the history of [the company] had ever been fired for” the misconduct

at issue, and where employer failed to produce evidence that a relevant policy would

have been applied). Absent that kind of information, summary judgment for U.S.

Bank is not warranted. Accordingly, the Court denies U.S. Bank’s motion for

summary judgment and grants Retamozo’s cross-motion on the same grounds.

IV. Conclusion

For these reasons, U.S. Bank’s summary judgment motion is granted in part

and denied in part. [Dkt. No. 73.] Summary judgment is granted on Retamozo’s ADA

failure to accommodate claim and FMLA interference claims, Counts One and Four

respectively. Summary judgment is denied on Retamozo’s retaliation claims under

the FMLA and the ADA and her disparate treatment claim under the ADA, Counts

Two, Three, and Four. U.S. Bank’s motion for summary judgment on after-acquired

evidence is denied; and it is granted in favor of Retamozo as to that affirmative

defense.

Enter: 21-cv-1652 □

Date: August 18, 2023

Lindsay C. Jenkins

United States District Judge

31